Condensing Vaporisers Aust Pty Ltd t/as R J Tinker & Son v FDC Construction & Fitout Pty Ltd

[2014] NSWCA 95

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Condensing Vaporisers Aust Pty Ltd t/as R J Tinker & Son v FDC Construction & Fitout Pty Ltd [2014] NSWCA 95

Hearing dates:

26 March 2014

Decision date:

01 April 2014

Before:

Macfarlan JA
Ward JA

Decision:

The application for leave to appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - civil - application for leave to appeal - significantly less than $100,000 at issue - applicant's case no more than arguable - no issue of principle or question of general public importance - leave to appeal refused

Legislation Cited:

Uniform Civil Procedures Rules 2005 (NSW), r 51.41

Cases Cited:

Be Financial Pty Limited v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Limited [1995] NSWCA 69
Stanton v Fell [2014] NSWCA 44

Category:

Procedural and other rulings

Parties:

Condensing Vaporisers Aust Pty Ltd t/as R J Tinker and Son (Applicant)
FDC Construction & Fitout Pty Ltd (Respondent)

Representation:

Counsel:
M Pesman SC/C Alexander (Applicant)
F Corsaro SC (Respondent)
Solicitors:
Bay Legal (Applicant)
Clark McNamara Lawyers (Respondent)

File Number(s):

CA 2014/33358

 Decision under appeal 

Citation:

FDC Constructions & Fitout Pty Limited v Condensing Vaporisers Aust. Pty Ltd t/as RJ Tinker and Son [2013] NSWSC 1073

Date of Decision:

2013-08-09 00:00:00

Before:

Slattery J

File Number(s):

2011/384083

Judgment

1. THE COURT: This is an application by Condensing Vaporisers Aust Pty Limited t/as RJ Tinker & Son ("Tinker") for leave to appeal from a judgment of Slattery J by which his Honour dismissed a cross-appeal by Tinker from a decision in the Local Court that was largely in favour of FDC Construction & Fitout Pty Limited ("FDC").

1. In the Local Court proceedings, Tinker had sued FDC for breach of contract, misleading or deceptive conduct or alternatively on a quantum meruit, claiming the amount of $56,809.28 including interest. The claims related to the supply by Tinker of sunshades for fitting to the exterior of a building in Chatswood. FDC was the contractor involved in the construction and fitout of the building.

1. In essence, the dispute between Tinker and FDC was whether the contract for supply of the sunshades was a fixed price "lump sum" contract or whether it was on a price per unit basis. Tinker's claim was for payment in respect of an additional 81 sunshades supplied over and above the number it had referred to in a revised quotation given by it in February 2009.

1. Bradd LCM heard the proceedings over five days between October or November 2010 and 19 September 2011 and found predominantly in favour of FDC (holding that the contract was a lump sum contract but that there were some additional sunshades supplied that were not specified in the drawings worth around $4,900 and that FDC was obliged to pay for those).

1. FDC appealed from that decision but in due course abandoned that appeal and it was dismissed by consent. Tinker cross-appealed and hence was the moving party in the proceedings before Slattery J. Tinker's cross-appeal included the contention that the magistrate had failed to give sufficient reasons.

1. Slattery J agreed with the magistrate's construction of the agreement between Tinker and FDC and concluded that there was no error demonstrated in his reasons. His Honour found that the magistrate had not failed to give adequate reasons or to make sufficient findings. He also found no error in the exercise of the magistrate's costs discretion evident in two subsequent costs judgments. Accordingly, his Honour dismissed Tinker's cross-appeal with costs.

1. Tinker filed a notice of appeal in this Court on 8 November 2013. The grounds stated in it relate to: his Honour's finding as to the adequacy of reasons given by Bradd LCM for the Local Court judgment (grounds 1 and 2); his Honour's findings as to the claim by Tinker based on alleged representations, including his Honour's [supposed] conclusion that the representations could not as a matter of law form part of a misleading or deceptive claim because they were made before entry into the contract and could not have been relied upon by Tinker (grounds 3 and 4); and his Honour's finding in that the contract was for a fixed price rather than a price per unit contract (grounds 5 to 6). Ground 6 contends that the contract was ambiguous and that his Honour ought to have had regard to extrinsic circumstances.

1. FDC filed a notice of motion seeking an order that the notice of appeal be dismissed as incompetent pursuant to r 51.41 of the Uniform Civil Procedures Rules 2005 (NSW). By judgment delivered today, the Court has made the order sought. Tinker accordingly requires leave to enable it to pursue an appeal.

Leave to appeal

1. The amount claimed by Tinker in the Local Court proceedings was in the amount of $56,809.28, including interest.

1. Tinker submits that the failure of the magistrate to give adequate reasons (demonstrated it is said by the inferences that Slattery J was required to draw from the reasons that were given below) amounts not just to an error of principle but to a substantial injustice to Tinker, which had expended a significant amount of time and money in litigating the dispute in the Local Court. It is submitted that the statutory policy underlying the requirement for leave in small appeals is outweighed by the nature and significance of the failure to give adequate reasons.

1. Tinker relies on what was said in Be Financial Pty Limited v Das [2012] NSWCA 164, namely that ordinarily it is only appropriate to grant leave to appeal in cases involving less than $100,000 where there are issues of principle, questions of general public importance or there is an injustice which is reasonably clear (in the sense of going beyond what is merely arguable). Tinker accepts that what must be demonstrated is something more than that the trial judge was arguably wrong (Carolan v AMF Bowling Pty Limited [1995] NSWCA 69).

1. FDC submits that there can be no doubt as to the reasons why the parties won or lost on the basis of the Local Court judgment; and that there is no basis to support a contention that there was a significant error by Slattery J or that his Honour was demonstrably wrong in principle; and there is no basis for the conclusion that Tinker has suffered an injustice in respect of the judicial process.

Conclusion

1. Tinker's complaint as to the adequacy of the magistrate's reasons does not in our view involve any issue of principle or question of general public importance, nor do its other complaints made as to the primary judge's findings. The costs and time incurred to date in the proceedings are disproportionate to the amount in issue and we are not persuaded that Slattery J clearly erred in any respect. Put at their highest, Tinker's contentions do not rise above mere arguability. The case accordingly falls within the circumstances in which appeals involving less than $100,000 are ordinarily refused (see Stanton v Fell [2014] NSWCA 44 at [6] - [7] and the cases there referred to). We do not consider that this is an appropriate matter for the grant of leave to appeal and accordingly dismiss the application for leave to appeal with costs.

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Decision last updated: 01 April 2014